Conservatorship of Janice Geerdes by Laura Jenkins, Conservator v. Albert Gomez Cruz ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-1905
Filed December 6, 2023
CONSERVATORSHIP OF JANICE GEERDES by LAURA JENKINS,
Conservator,
Plaintiff-Appellee,
vs.
ALBERT GOMEZ CRUZ,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Kossuth County, Don E. Courtney,
Judge.
Albert Cruz appeals the invalidation of a quitclaim deed because of undue
influence and lack of mental capacity to execute the deed. AFFIRMED.
Shaun Thompson of Newman Thompson & Gray PC, Forest City, for
appellant.
Kevin R. Sander of Fitzgibbons Law Firm, L.L.C., Estherville, for appellee.
Heard by Bower, C.J., and Buller and Langholz, JJ.
2
LANGHOLZ, Judge.
Janice Geerdes, a seventy-nine-year-old widow, deeded her long-time
friend and business partner, Albert Cruz, her half-interest in property where they
operated their joint hog operation and Cruz also lived. Six months later, one of
Geerdes’s daughters became her conservator and eventually sued Cruz to
invalidate the quitclaim deed conveying the property. After a bench trial, the district
court invalidated the deed—finding that Geerdes lacked the mental capacity to
execute the deed and was subject to undue influence by Cruz. Cruz appeals,
arguing that both findings were in error.
While this is a close case, when giving the district court’s fact findings the
weight they are entitled, we agree on our de novo review that the conservator has
proven by clear, satisfactory, and convincing evidence that Geerdes lacked the
mental capacity to execute the deed. Therefore, we affirm on that basis and
decline to reach the district court’s alternative basis for invalidating the deed.
I.
Geerdes and her husband lived in Swea City, where they eventually owned
nearly 300 acres of farmland. Cruz met Geerdes and her husband in the early
1990s when he moved to the area and rented a home from the couple. He was
about twenty years younger than Geerdes. And he quickly became friends with
them. After her husband’s death in 1999, Cruz continued his friendship with
Geerdes, seeing her most days and helping her with tasks such as cleaning and
driving her to the store or the doctor.
Geerdes used her farmland to generate income by renting it or by enrolling
it in conservation programs. But she also began some business ventures with
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Cruz. They drove a semi-trailer truck together for a while beginning in about 2004.
Around the same time, they also started a hog operation on a small portion of
Geerdes’s property.
They constructed and operated the facility to raise hogs on a 9.64-acre
parcel of farmland through a partnership called Blue Acres Pork. Cruz provided
the labor—he is largely unable to read or write—and Geerdes ran the business
side. Cruz cleaned the land to prepare it for construction and cared for the hogs
for the first six months of the operation, after which the partnership used a third-
party to care for the hogs.
As a part of this arrangement, in September 2004, Geerdes executed a
warranty deed conveying a half-interest in the 9.64-acre parcel, which they then
owned as tenants in common. The deed notes the conveyance was an absolute
gift with no consideration. This first deed is not challenged here.
Geerdes received the entire income from their hog-operation partnership.
But she then bought Cruz items such as groceries and gasoline or gave Cruz
checks to pay him his share of the partnership income. Tax returns show Blue
Acres Pork earned $73,406 in 2018 and $88,310 in 2019.
Geerdes involved Cruz in other significant decisions as well. Around 2016,
Geerdes sold eighty acres of her farmland to a third party. Cruz advised Geerdes
and accompanied her to meet with the lawyer for the sale. Geerdes ended up
accepting a reduced per-acre price for the land to receive the full sales price
immediately. The sale incurred a significant tax bill that Geerdes failed to timely
pay.
4
In April 2017, Geerdes saw an occupational therapist for a cognitive
assessment. The therapist performed the Saint Louis University Mental Status
Examination (SLUMS) and the Revised Allen Cognitive Performance Test (CPT).
On the SLUMS, she scored nineteen out of thirty points, and the therapist’s notes
indicate a score below twenty-one “denotes dementia for a person with a high
school education.” On the CPT, she scored thirty-three out of thirty-nine points,
which denotes “mild cognitive-function disability.” The notes explained that this
disability may cause—among other impairments—problems with “judgment,
reasoning, and planning ahead,” and may cause Geerdes to “be impulsive or have
problems anticipating consequences before acting.” The therapist concluded she
had “underlying dementia” and “needs frequent check-in support and assistance
with instrumental activities of daily living.”
Later that year, Geerdes was injured in a vehicle accident, requiring her to
stay in the hospital for about one month. And in January 2018, Geerdes returned
to occupational therapy for another assessment. She received similar scores on
the SLUMS and CPT, though the notes indicate “previous testing experience may
have favorably influenced testing scores.” The therapist notes also said that
Geerdes self-reported “recent mental status changes including decreased
memory.” And the therapist again concluded that Geerdes had dementia and
“should receive assistance with bill paying” and “managing finances.”
By this time, Geerdes’s family also observed that Geerdes “seemed
confused about a lot of things and pretty forgetful,” so one of her daughters, Laura
Jenkins, was indeed helping with her finances and bills. For example, Geerdes
struggled to understand that bills had to be paid monthly. And she would try to
5
write checks or withdraw money from the ATM when she lacked sufficient funds in
her account. Jenkins and another of Geerdes’s daughters both observed that
Geerdes’s mental functioning continued to worsen after the accident. So did the
farmer who rented land from Geerdes and often visited with her about financial
and business matters. He testified that after the accident, mentally, Geerdes “was
never the same again.”
About a year later, in January 2019, Geerdes set about transferring to Cruz
her remaining half-interest in the 9.64-acre property where they operated the hog
business. By this time, Cruz also lived on the property with his daughter. Geerdes
and Cruz met with Gayle Lemmon—an accountant who had worked with Cruz,
Geerdes, and their partnership—to discuss executing a quitclaim deed for Geerdes
to transfer her half-interest to Cruz. According to Lemmon, Geerdes did most of
the talking during their meeting, drew a description of the land, and appeared to
be the main decision-maker. She also testified Cruz “was kind of like a son to”
Geerdes and Geerdes wanted to be sure Cruz received his share of the property.
Lemmon referred the pair to an attorney—who had never worked for
Geerdes—to draft the quitclaim deed that same day. And they later returned to
Lemmon to sign the deed in her presence, as she notarized it. The quitclaim deed
notes Cruz paid Geerdes $1 in consideration for her property interest. In
Lemmon’s opinion, Geerdes appeared to have similar decision-making capabilities
while meeting about the deed as Lemmon had observed before. At some point,
Geerdes gave Lemmon a handwritten note, which says, “what I help [sic] Albert
Cruz is nobody [sic] concern.”
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Jenkins discovered the quitclaim deed a couple of months later, in March
2019, while helping Geerdes with her finances. When Jenkins told her mother that
the deed transferred the second half of the hog-business property to Cruz,
Geerdes repeatedly denied that she had done so and told Jenkins “that’s not what
I wanted.” Geerdes was often short of money around this time and had outstanding
loans—including a loan of over $100,000 on the property she deeded to Cruz—as
well as a remaining tax obligation from her 2016 sale of farmland.
Four months later, Jenkins became Geerdes’s conservator. Shortly after,
Geerdes moved to Kansas to live with another daughter, who immediately noticed
that “her mental capacities wasn’t good.” Geerdes could not use a calculator to
help with adding up receipts or take care of personal tasks like bathing, shaving,
or combing hair. Geerdes shared that she had “a mess going on” and was “just
waiting to die.” By the end of the year, a Kansas court had appointed this daughter
as Geerdes’s guardian.
Jenkins, as Geerdes’s conservator, sued Cruz in May 2020 to set aside the
quitclaim deed. After a bench trial two years later, the district court found that
Geerdes lacked mental capacity to execute the deed and Cruz exerted undue
influence over Geerdes. The court thus set aside the deed. And Cruz now
appeals.
II.
The parties agree that this action to set aside the deed was heard in equity,
so we apply de novo review. Iowa R. App. P. 6.907; In re Est. of Herm, 284 N.W.2d
191, 199 (Iowa 1979). We give weight to the fact findings of the district court,
especially with regard to witness credibility, but we are not bound by them.
7
Mendenhall v. Judy, 671 N.W.2d 452, 454 (Iowa 2003); see also Iowa R. App.
P. 6.904(3)(g). Still, in a close case such as this, that weight may tip the balance.
See Groves v. Groves, 82 N.W.2d 124, 130 (Iowa 1957) (“While the case may be
close, when we give these findings the weight to which they are entitled we are not
justified in reaching a contrary conclusion.”).
To set aside the deed because of a lack of mental capacity, the conservator
“had the burden to show by clear, satisfactory and convincing evidence that at the
time [Geerdes] made the deed she was incapable of understanding in any
reasonable manner the nature of the transaction and its consequences and effects
upon her rights and interests.” Id. at 131; see also Costello v. Costello, 186 N.W.2d
651, 654 (Iowa 1971) (describing issue as whether grantor “possess[ed] sufficient
consciousness or mentality . . . to understand the import of her acts”). “A higher
degree of mental competence is required for the transaction of ordinary business
and the making of contracts than is necessary for testamentary disposition of
property.” Costello, 186 N.W.2d at 654–55 (citation omitted).1 And it is not
necessary “to establish complete mental incapacity.” Brewster v. Brewster, 188
N.W. 672, 674 (Iowa 1922).
In evaluating Geerdes’s mental capacity to execute the deed, we may judge
her “weakness of mind” based on “other acts within a reasonable time prior and
subsequent to” her execution of the deed. Id. We may also consider her “physical
1 Cruz summarily argues that we should instead apply the lower testamentary
standard because the quitclaim deed “was a gift.” But Cruz cites no authority for
extending this standard beyond dispositions under a will. We thus follow well-
settled law requiring higher mental competence for all other transactions. See
Costello, 186 N.W.2d at 654–55.
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condition; the adequacy of consideration; whether or not the conveyance was
improvident; [and] the relation of trust and confidence between” herself and Cruz.
Id. Because this is a fact-specific inquiry, prior cases “are of little moment, and
afford but weak precedents” in considering the proper result here. Id. at 673.
At the time Geerdes signed the 2019 deed, her physical health was fair as
she still lived independently—though with considerable help from her children and
Cruz with her finances and daily activities. The exact value of Geerdes’s half-
interest in the hog site is not in the record, but the $1 consideration Cruz paid for
that half-interest is clearly not even close to fair compensation for the property.
This transaction was also improvident considering that Geerdes was often low on
cash and had large outstanding financial obligations, including a loan on the very
land she was transferring. And Geerdes placed significant trust and confidence in
Cruz as a decades-long friend and business partner, as shown by their joint
business ventures and his advice for the 2016 sale of farmland.
Another factor in evaluating mental capacity is the lack of independent
advice. See Daughton v. Parson, 423 N.W.2d 894, 896 (Iowa Ct. App. 1988).
Cruz notes that he and Geerdes saw both accountant Lemmon and an attorney
before Geerdes signed the deed. But Cruz did not testify that Geerdes received
any independent advice about the deed. What’s more, according to Lemmon,
Geerdes came to her for the express purpose of transferring the hog-operations
property to Cruz. Lemmon did not say that she gave her any advice beyond
directing her to an attorney to draft the deed. Geerdes and Cruz met that attorney
for the first and only time later that day. And others with whom Geerdes normally
discussed financial matters—her daughter Jenkins and her farm tenant—testified
9
that she never discussed the possible transfer before signing the deed.
Considering all this testimony and the compressed timeline, there is no indication
Geerdes received any meaningful independent advice before signing the deed.
But most important to our analysis is Geerdes’s mental weakness before
and after signing the deed. Her medical records show signs of dementia beginning
nearly two years before signing the deed. Indeed, her occupational therapist
specifically noted that her mental impairment could cause her to “be impulsive or
have problems anticipating consequences before acting” as well as issues with
“judgment, reasoning, and planning ahead.” And consistent with the
recommendations of the therapist—at the same time Geerdes signed the deed—
Jenkins managed all her finances because Geerdes no longer understood how to
do so on her own.
Her children and her farm tenant also testified that her mental condition had
not improved by the time she signed the deed. Just two months after signing the
deed, when Jenkins discovered the deed, Geerdes did not remember or
understand its effect. And only six months after signing the deed, Geerdes moved
in with one of her daughters and was no longer living independently. Indeed, while
neither judicial proceeding is part of our record, Geerdes was under both a
conservatorship and a guardianship within one year of signing the deed.
Cruz maintains the conservator did not carry her burden to prove lack of
mental capacity. And to be sure, Geerdes’s medical records show only “mild”
cognitive impairment. See Daughton, 423 N.W.2d at 897 (“[M]ere mental
weakness or unsoundness to some degree is not sufficient in the absence of fraud
or undue influence, to invalidate a contract.” (citation omitted)). Lemmon, the only
10
non-party witness who testified to Geerdes’s mental state at the specific times
Geerdes requested and signed the deed, said she appeared to understand the
deed. The conservator did not present expert testimony, and her only witnesses
were Geerdes’s children and her farm tenant—all of whom displayed animosity
toward Cruz and, at least as to her children, could benefit from the hog site interest
being returned to Geerdes. Accord Hart v. Lundby, 137 N.W.2d 642, 647 (Iowa
1965) (“Failure to call witnesses, expert or nonexpert, or failure to ask questions
of witnesses who are closely and intimately acquainted with testator as to the
question of mental incapacity militates against a contestant.”).
But to the extent the witness testimony was in conflict, the district court’s
thorough fact findings show that it implicitly found the conservator’s witnesses
more credible on their observations of Geerdes’s mental state around the time she
signed the deed. We place weight on these findings. See Mendenhall, 671
N.W.2d at 454. We also discount Lemmon’s observations because of the limited
nature of her meetings with Geerdes concerning the deed compared to the more
extensive interactions of the other witnesses.2 And Cruz left the conservator’s
medical evidence of Geerdes’s mental weakness unchallenged—presenting no
2 Admittedly, there is some intellectual tension in the long-standing dictates that
we simultaneously “give weight to the trial court’s findings” and conduct “de novo”
review. Groves, 82 N.W.2d at 131. But unlike the dissent, we see no inconsistency
in giving those findings weight while also independently assessing and explaining
the bases for them that can be seen from the written record. Since we are agreeing
with the district court’s findings, it would be of no consequence if the district court
also had other reasons—such as witness demeanor—not apparent from the record
for discounting Lemmon’s testimony.
11
conflicting medical evaluation nor any expert testimony to undermine the otherwise
clear conclusions in the medical records.3
Considering the heightened mental capacity required for an inter vivos
transfer and the record as a whole—especially Geerdes’s mental state in the
months before and after signing the deed—we agree the conservator carried her
burden to prove Geerdes did not understand the effect of the deed when she
signed it. We thus affirm the district court’s ruling invalidating the deed transferring
Geerdes’s half-interest in the hog-operation property to Cruz because she lacked
the mental capacity to execute it.
AFFIRMED.
Bower, C.J., concurs; Buller, J., dissents.
3 We recognize that Cruz did not have to present any evidence at all since the
burden of proof always remains on the conservator seeking to invalidate the deed.
See Groves, 82 N.W.2d at 131. But in the absence of any evidence in this record
that this medical evidence is unreliable, we will not disregard it based on mere
arguments on appeal or expert testimony presented in other cases from other
jurisdictions.
12
BULLER, Judge (dissenting).
“Clear and convincing evidence is the highest evidentiary burden in civil
cases. It means there must be no serious or substantial doubt about the
correctness of a particular conclusion drawn from the evidence.” In re N.C., 952
N.W.2d 151, 153 (Iowa 2020) (internal quotation marks and citation omitted).
Because I believe the majority opinion is not faithful to the burden of proof required
by precedent and erroneously defers to a district court ruling that lacks credibility
findings or assessment of any expert testimony, I cannot join. I would reverse the
district court because I believe after-the-fact observations by self-interested lay
witnesses, standing alone, are not enough to satisfy our highest civil burden. In
this record, the sole unbiased witness described Geerdes as entirely capable when
transferring property consistent with her expressed wishes. Based on this record,
I would find the district court erred when it invalidated Geerdes’s transfer of
property to Cruz. I dissent.
But first, a point of agreement. The majority opinion bypasses the primary
holding of the district court, which was that Geerdes and Cruz were in a
“confidential relationship” that triggered a presumption of undue influence (and
placed the burden of proof on Cruz). This finding made up the lion’s share of the
district court ruling but is not relied on by the majority opinion, presumably because
it is not supported by the record. I would find the district court’s conclusion on
undue influence was a material error warranting reversal, and I am concerned it
colored the remainder of the ruling by impermissibly shifting the burden of proof.
Where I part ways with the majority opinion is in its reliance on capacity as
an alternative basis to affirm. The capacity analysis by the district court was
13
abbreviated and ran only a handful of sentences at the very end of the opinion.
This is what it says, in its entirety:
Even if the court were to find that they were not in a confidential
relationship the court finds that [Geerdes] lacked the requisite mental
capacity to quit claim her interest in the property. Her medical
records indicated as early as 2017 that she had dementia. The
dementia in combination with her age and physical health, the lack
of consideration, and the improvident nature of the transaction given
that she retained the debt on the property convinces this court that
from the entire record there is clear, convincing, and satisfactory
evidence that the grantor, [Geerdes], did not possess sufficient
consciousness or mentality to understand the import of her acts
when the deed was executed. The deed therefore must be and is
set aside. The court finds the conveyance invalid.
The majority expands on this holding significantly to affirm. Based on my review
of the record and precedent, I cannot join the majority in finding this analysis is
supported by clear and convincing evidence such that we can invalidate Geerdes’s
property rights. I would instead reverse the district court.
A. “The Highest Evidentiary Burden in Civil Cases”
I appreciate the majority’s acknowledgement this is a “close case,” and I
agree. Often in civil litigation, a “close case” can still supply a victory for the
plaintiff, as the typical burden of proof is only by a preponderance of the evidence.
Iowa R. App. P. 6.904(3)(f). In other words, it’s usually enough that a plaintiff has
proven the facts supporting a claim are probably true. See Holliday v. Rain & Hail
L.L.C., 690 N.W.2d 59, 64 (Iowa 2004). If the law only required a preponderance
of the evidence to affirm here—a determination Geerdes probably lacked
capacity—I might not be writing separately. But the law requires more when a
plaintiff seeks to invalidate someone’s right to transfer property as they wish.
14
“On [a] claim of mental incapacity [the] plaintiff ha[s] the burden to show by
clear, satisfactory and convincing evidence that at the time she made the deed she
was incapable of understanding in any reasonable manner the nature of the
transaction and its consequences and effects upon her rights and interests.”
Groves v. Groves, 82 N.W.2d 124, 131 (Iowa 1957); see Daughton v. Parson, 423
N.W.2d 894, 896 (Iowa Ct. App. 1988) (“The party alleging lack of mental capacity
sufficient to execute a deed has the burden of proving by clear, convincing, and
satisfactory evidence that the grantor did not possess ‘sufficient consciousness or
mentality . . . to understand the import of her acts’ when the deed was executed.”).
As I mentioned at the outset, clear and convincing “means there must be no
serious or substantial doubt about the correctness of a particular conclusion drawn
from the evidence.” N.C., 952 N.W.2d at 153 (citation omitted). This burden “refers
to the character or nature of the evidence, whereas ‘preponderance’ of the
evidence is a quantitative measure.” Holliday, 690 N.W.2d at 64 (citation omitted).
I have serious and substantial doubt about the correctness of the district
court’s conclusions here. While there are certainly occasions where I would
appropriately affirm a “close” civil case decided by preponderance of the evidence,
even on de novo review, I cannot do so in a case that commands our “highest
evidentiary burden in civil cases.” See N.C., 952 N.W.2d at 153. To invalidate a
person’s autonomy over their property requires more than a close evidentiary
record, and our case law compels me to reverse.
B. The Best Evidence in this Thin Record Supports Reversal
I have no serious complaints about the majority opinion’s recitation of facts,
but I think what’s contained in this unusually thin record warrants additional
15
discussion. Of the six lay witnesses who testified at trial, Cruz and accountant
Lemmon are the only witnesses who could testify regarding Geerdes’s capacity on
the day she signed the deed. Setting aside Cruz’s testimony due to his interest in
the case, we are left with the testimony of Lemmon, who has no dog in this fight.
Lemmon explained she provided tax services to Geerdes for around fifteen
years before Geerdes came to her in 2019 and requested help transferring
property to Cruz. Lemmon described how Geerdes’s request was unambiguous
and Geerdes—not Cruz—was the one “doing most of the talking” and “driving the
decision.” Lemmon observed Geerdes had a good understanding of the property
she was transferring “[b]ecause she even drew out the description of it and where
she wanted the lines to go on an aerial photograph.” Cf. In re Est. of Johnson,
No. 22-1730, 2023 WL 7015335, at *2 (Iowa Ct. App. Oct. 25, 2023) (“[C]ourts
consider a testator’s understanding of the nature of the interest held in their
property when deciding whether the testator had capacity.”). Lemmon opined that
Geerdes appeared “to be in a similar mindset regarding her decision-making
capabilities” in 2019 as Geerdes had been in 2004 when they first met. And she
relayed to the court that Geerdes told her she wanted to execute the deed “to make
sure that [Cruz] had gotten his share of the property” because her daughters “did
not like” Cruz. This explanation is borne out and corroborated by Geerdes’s
handwritten note and reflected in the apparent animosity between Cruz and her
daughters at trial.
Weighing this good evidence of capacity against the daughters’ and farm
tenant’s self-interested testimony describing Geerdes’s mental status on other
dates, I have serious doubts about the correctness of the district court’s
16
conclusion. The majority opinion may be right that this was an “improvident”
decision from a purely financial perspective. But it’s clear from this record that
Geerdes wanted to transfer the property to Cruz for personal, rather than financial,
reasons. This makes sense given the history between the two, which the majority
opinion fairly summarizes in describing them as “long-time friend[s] and business
partner[s].” I do not believe our law allows us to strip a person’s autonomy when
their motivation to transfer property is more personal than profit driven. Among the
limited pertinent facts in this record, the better evidence suggests Geerdes had
capacity when she signed the deed. I cannot find by clear and convincing evidence
that Geerdes “was incapable of understanding in any reasonable manner the
nature of the transaction and its consequences and effects upon her rights and
interests.” Groves, 82 N.W.2d at 131; see Daughton, 423 N.W.2d at 896.
Perhaps more important than what’s in this record, however, is what’s
missing: credibility findings and expert testimony.
C. No Credibility Findings
I have written before about “the difficult position the appellate courts are put
in when the district court does not make express credibility findings or explain why
it is rejecting what appears to be credible testimony in favor of other evidence.”
Connell v. Barker, No. 22-1791, 2023 WL 4759458, at *4 (Iowa Ct. App.
July 26, 2023) (Buller, J., specially concurring). This is another case where the
district court’s failure to make credibility findings hamstrings our review. The
majority opinion apparently concedes there were no explicit credibility findings
anywhere in the district court’s ruling and instead insists the district court “implicitly
found the conservator’s witnesses more credible on their observations of
17
Geerdes’s mental state around the time she signed the deed.” I’ve looked carefully
for any implicit credibility findings in the district court ruling, and I can’t find them.
The entirety of the district court’s capacity analysis is reproduced near the
beginning of this dissent, and I sincerely question whether anything in that five-
sentence paragraph can be stretched into an implicit credibility determination. At
most, the facts section of the ruling contains a summary of the evidence presented
at trial, which does nothing to facilitate appellate review. It seems to me the
majority opinion is paying deference to the outcome below—rather than the fact
findings—which I doubt our law supports. E.g., In re Est. of Johnson, 739 N.W.2d
493, 496 (Iowa 2007) (“Of course, under a de novo review we will make our own
legal conclusions, as we are not bound by and give no deference to the trial court’s
conclusions of law.”).
Confusingly, the majority opinion “place[s] weight” on and defers to the
district court’s purported credibility findings made below, but simultaneously makes
its own credibility findings about Lemmon based on “the limited nature of her
meetings with Geerdes concerning the deed.” Setting aside that this overlooks the
fifteen-year history between Lemmon and Geerdes, the district court never
expressed concern about the “limited nature” of their contact surrounding the deed.
This is a credibility finding made for the first time on appeal. This finding
undermines the basis for the majority opinion’s deference to the district court,
which is premised on the factfinder being in a better position to evaluate credibility.
My perspective is we should either admit the ruling does not contain fact-findings
supported by credibility determinations or we should restrain ourselves from
judging credibility ourselves on a cold record—we can’t have it both ways.
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D. No Expert Testimony
Given the significant burden required to invalidate Geerdes’s property
rights, I would also find the lack of expert testimony fatal to the plaintiff’s challenge
to Geerdes’s capacity. I am not personally inclined toward a rule requiring expert
testimony in every case litigating capacity, and it appears the majority rule prefers
this be decided on a case-by-case basis. See State v. Gardiner, 895 A.2d 703,
712 n.11 (R.I. 2006) (collecting cases); but see In re Est. of Boyd, 798 S.E.2d 330,
332 n.4 (Ga. Ct. App. 2017) (noting that, among other things, “the submission of
[a person’s] medical records without expert testimony interpreting them” is
insufficient to meet the burden to prove incapacity).
In this particular case, the record is too thin to find lack of capacity by clear
and convincing evidence without the benefit of expert testimony. For just one
example of why, the medical records the majority opinion claims offer “clear
conclusions” actually use generic and wishy-washy language like “[p]roblems may
be observed,” “[m]inor problems may be noticed,” “the person may be impulsive or
have problems,” and “difficulties may manifest” in describing the “mild” cognition
issues suggested by limited testing. And even these records—arguably the best
evidence supporting the plaintiff—were created a year before the transfer and by
an occupational therapist, who I am skeptical could opine on capacity under Iowa
Rule of Evidence 5.702. See Iowa Code § 148B.2(3) (2022) (on the scope of
practice for occupational therapists); Iowa Admin r. 645–208.1 (same). Neither
our court nor the district court have the appropriate medical expertise to
extrapolate from the conditional and ambiguous language about capacity in the
records to the certainty required by the clear-and-convincing evidentiary burden.
19
These facts are a far cry from the rare appellate case affirming incapacity absent
expert testimony. See Gibbons v. Redmond, 49 P.2d 1035, 1039 (Kan. 1935)
(describing record where, despite no relevant physical limitation, testator’s mental
decline was so severe he could not sign his own name). And the records, contrary
to the majority opinion’s assertion, offer no “clear conclusions.”
In conducting a review of comparable cases from other jurisdictions, it
seems telling that virtually every case to consider the import of cognitive testing
like the SLUMS (relied on by the district court and majority opinion) has turned on
expert testimony—and usually that of more than one expert. See, e.g., Wiseman
v. Keeter, 550 S.W.3d 883, 884 (Ark. Ct. App. 2018) (summarizing expert
testimony explaining a SLUMS score of 1/30); In re Guardianship of A.M.Q.,
No. 2015AP2614, 2017 WL 1386352, at *3–4 (Wis. Ct. App. Apr. 18, 2017)
(summarizing competing expert testimony on SLUMS and other cognitive testing);
In re Coleman, No. 2132 EDA 2014, 2015 WL 7355666, at *6 (Pa. Super. Ct. Mar.
30, 2015) (summarizing expert testimony explaining SLUMS scores of 17/30 and
23/30 in the context of other cognitive testing). I have not found any case from any
jurisdiction where an appellate court has affirmed a finding of incapacity based
upon a borderline score—like Geerdes’s SLUMS results—absent expert
testimony. And I cannot join the majority to be the first to do so.
To the extent I have found comparable cases, some courts have recognized
that SLUMS scores well-below Geerdes’s do not necessarily indicate incapacity in
civil litigation or incompetence to stand criminal trial. See United States v. Kight,
No. 1:16-CR-99-WSD, 2018 WL 672119, at *3 (N.D. Ga. Feb. 2, 2018) (finding
offender with score of 17/30 on SLUMS was competent to stand trial); In re Est. of
20
Kusmanoff, 83 N.E.3d 1144, 1172 (lll. App. Ct. 2017) (finding guardianship not
appropriate, and that subject of proceedings still had capacity, despite “mild or
moderate decline in cognitive function,” including memory loss and other difficulties
documented in part by a 13/30 SLUMS score). This casts further doubt on the
district court ruling in the absence of expert testimony.
Last on this front, I specifically disagree with the majority opinion’s criticism
that “Cruz left the conservator’s medical evidence unchallenged” because he did
not present his own medical evaluation or expert testimony. This criticism
inappropriately shifts the burden to Cruz, who—absent a proven confidential
relationship—had no obligation to furnish evidence, and certainly no duty to find
his own expert to rebut testimony never offered by the plaintiff. It seems the
majority opinion has committed the same error as the district court, implicitly
shifting the burden to Cruz rather than the plaintiff where it belongs. At risk of
beating a dead burden-of-proof horse, the plaintiff bore the highest burden
authorized by civil law, and I believe it is error to shift the plaintiff’s shortcomings
to a defendant who need put forward no evidence to prevail.
In sum, I dissent because I believe the plaintiff did not prove its case to the
satisfaction of our highest evidentiary burden. Absent credibility findings or expert
testimony, the district court ruling is not supported by clear and convincing
evidence. The United States Supreme Court has consistently informed us the level
of certainty required by the clear-and-convincing-evidence standard is “necessary
to preserve fundamental fairness” in proceedings “that threaten the individual
involved with a significant deprivation of liberty or stigma.” See Santosky v.
Kramer, 455 U.S. 745, 756 (1982) (internal quotations and citations omitted).
21
Finding a “close case” with a thin record to be sufficient evidence in those
proceedings would be troubling. See, e.g., id. (irrevocable termination of parental
rights); Addington v. Texas, 441 U.S. 418, 424 (1979) (involuntary civil
commitment); Woodby v. INS, 385 U.S. 276, 285 (1966) (deportation from United
States); Chaunt v. United States, 364 U.S. 350, 353 (1960) (denaturalization). The
evidence in this case does not rise to the level of clear and convincing, as
precedent requires us to find before invalidating invalidate an Iowan’s right to
transfer property. I would reverse.